Gross v. Mariglio

Appellate Division of the Supreme Court of New York

Gross v. Mariglio

149 A.D.2d 922, 540 N.Y.S.2d 55, 1989 N.Y. App. Div. LEXIS 5920

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 14, 1989

StatusPublished

Cited by2 cases

This text of 149 A.D.2d 922 (Gross v. Mariglio) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gross v. Mariglio, 149 A.D.2d 922, 540 N.Y.S.2d 55, 1989 N.Y. App. Div. LEXIS 5920 (N.Y. Ct. App. 1989).

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Opinion

Determination unanimously modified on the law and as modified confirmed without costs, and matter remitted to respondents for imposition of an appropriate penalty, in accordance with the following memorandum: Upon our review of the [923]*923record, we conclude that the evidence is insufficient to support the third charge against petitioner. Consequently, we modify the order to dismiss this charge. We find substantial evidence in the record to sustain the Board’s determinations against petitioner on the remaining two charges.

- In our view, the penalty imposed by the Board, consisting of the revocation of petitioner’s certificate of registration as a master plumber in the City of Niagara Falls for a period of one year, is so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233-234). In the first situation, petitioner was using PVC piping during a period of time when the rules of the Plumbing Board were in a state of confusion regarding the use of this product. Moreover, petitioner voluntarily cured the condition once he was notified of the illegal use. The second charge arose from petitioner’s failure to obtain a plumbing permit before commencing installation, but this failure can be attributed to the general contractor’s failure to obtain the building permit, a prerequisite to obtaining a plumbing permit. Therefore, we remit the matter to the Plumbing Board to impose an appropriate sanction. Under the circumstances, we consider a cancellation for 30 days to be the most severe sanction that should be imposed (see, Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279, 285). We have examined petitioner’s remaining contentions and find them lacking in merit. (Article 78 proceeding transferred by order of Supreme Court, Niagara County, Doyle, J.) Present—Doerr, J. P., Boomer, Green, Pine and Davis, JJ.

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Determination unanimously modified on the law and as modified confirmed without costs, and matter remitted to respondents for imposition of an appropriate penalty, in accordance with the following memorandum: Upon our review of the [923]*923record, we conclude that the evidence is insufficient to support the third charge against petitioner. Consequently, we modify the order to dismiss this charge. We find substantial evidence in the record to sustain the Board’s determinations against petitioner on the remaining two charges.

- In our view, the penalty imposed by the Board, consisting of the revocation of petitioner’s certificate of registration as a master plumber in the City of Niagara Falls for a period of one year, is so disproportionate to the offense as to be shocking to one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233-234). In the first situation, petitioner was using PVC piping during a period of time when the rules of the Plumbing Board were in a state of confusion regarding the use of this product. Moreover, petitioner voluntarily cured the condition once he was notified of the illegal use. The second charge arose from petitioner’s failure to obtain a plumbing permit before commencing installation, but this failure can be attributed to the general contractor’s failure to obtain the building permit, a prerequisite to obtaining a plumbing permit. Therefore, we remit the matter to the Plumbing Board to impose an appropriate sanction. Under the circumstances, we consider a cancellation for 30 days to be the most severe sanction that should be imposed (see, Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279, 285). We have examined petitioner’s remaining contentions and find them lacking in merit. (Article 78 proceeding transferred by order of Supreme Court, Niagara County, Doyle, J.) Present—Doerr, J. P., Boomer, Green, Pine and Davis, JJ.

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Bluebook (online)

149 A.D.2d 922, 540 N.Y.S.2d 55, 1989 N.Y. App. Div. LEXIS 5920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-mariglio-nyappdiv-1989.

Opinion

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